nationalsecuritylaw forthcoming scholarship

By Michael N. Schmitt, Chairman, International Law Department, U.S. Naval War CollegeJeffrey S. Thurnher, Lieutenant Colonel, U.S. Army, Military Professor, International Law Department, U.S. Naval War College.

The introduction of autonomous weapon systems into the “battlespace” will profoundly influence the nature of future warfare. This reality has begun to draw the attention of the international legal community, with increasing calls for an outright ban on the use of autonomous weapons systems in armed conflict. This Article is intended to help infuse granularity and precision into the legal debates surrounding such weapon systems and their future uses. It suggests that whereas some conceivable autonomous weapon systems might be prohibited as a matter of law, the use of others will be unlawful only when employed in a manner that runs contrary to the law of armed conflict’s prescriptive norms governing the “conduct of hostilities.” This Article concludes that an outrightban of autonomous weapon systems is insupportable as a matter of law, policy, and operational good sense. Indeed, proponents of a ban underestimate the extent to which the law of armed conflict, including its customary law aspect, will control autonomous weapon system operations. Some autonomous weapon systems that might be developed would already be unlawful per se under existing customary law, irrespective of any treaty ban. The use of certain others would be severely limited by that law.

Furthermore, an outright ban is premature since no such weapons have even left the drawing board. Critics typically either fail to take account of likely developments in autonomous weapon systems technology or base their analysis on unfounded assumptions about the nature of the systems. From a national security perspective, passing on the opportunity to develop these systems before they are fully understood would be irresponsible. Perhaps even more troubling is the prospect that banning autonomous weapon systems altogether based on speculation as to their future form could forfeit their potential use in a manner that would minimize harm to civilians and civilian objects when compared to non-autonomous weapon systems.

Nearly fifteen years after the “material support” statute was first enacted, the Supreme Court in Holder v. Humanitarian Law Project affirmed the constitutionality of this broad grant of authority to the government to prosecute individuals providing material support—including humanitarian aid—to foreign terrorist organizations. This decision has led many charitable organizations to raise concerns about the reach of the statute and the chilling effect it has on their activities in the parts of the world most desperately in need of aid.

For the most part, the government has exercised its broad grant of discretion under the “material support” statute to prosecute those alleged to have committed serious terrorism-related offenses. Nonetheless, within both the humanitarian aid community and Muslim charitable donor community, there is still a palpable fear of prosecution of individuals or organizations that exclusively provide humanitarian aid. It has led some organizations to reconsider providing humanitarian aid, particularly in war-torn areas where terrorist organizations are active—precisely where aid is often most needed. Reducing aid in these areas may, in turn, undermine the very counterterrorism policies the statute is meant to advance by discouraging aid in high-risk areas.

This Article recommends new substantive prosecutorial guidelines to formalize safe harbors for aid that meets specific criteria based on: (1) the types of aid provided, (2) the recipient organizations, and (3) the presence or absence of a specific intent by the donor. It then offers four procedural approaches to instituting these substantive guidelines that may be used as alternatives or in combination. First, and likely to be most effective, is a formal amendment to the statute. In addition, the government could publish an advisory memorandum or statement, amend Department of Justice internal guidelines, and engage in targeted community outreach. Each of these approaches has been used in the past to address similar kinds of challenges. Together these three recommendations offer the best available options, barring statutory amendment, for addressing the chilling effect of the material support statute on humanitarian aid.

When faced with a global crisis within the scope of its mandate, the United Nations Security Council (UNSC or Council) has no obligation to decide whether or not to take action. This Article argues that it should. The UNSC is the only governing body with the legal authority to authorize binding measures necessary to restore peace and security, yet neither the United Nations Charter nor the UNSC’s own rules clarify the extent of its obligations. Unlike courts, the UNSC lacks a procedural rule establishing that it has a duty to decide. Unlike the United States Congress, which accepts its practical duty to declare war, the UNSC lacks consensus about when it must take up a matter. As a result, UNSC members can, and frequently do, defer making decisions in politically difficult cases. The costs of this ambiguity to those who depend on the UNSC for their security are high, making debate about UNSC reform critical and necessary.

In contrast to conventional scholarship addressing UNSC reform, this Article focuses on improving the UNSC’s decision-making process through the adoption of new procedural measures. It presents a novel approach to thinking about UNSC reform by translating wisdom from the realm of legal process theory to the political, quasi-judicial UNSC. The central argument is that the Council itself should adopt three procedural duties aimed at improving its decision-making process. First, the duty to decide would require the Council to take up decisions about whether or not it will take action in crises under its jurisdiction. Second, the duty to disclose would require the Council, when it takes no decision in a particular situation, to publicly disclose its reasoning for not doing so. Third, the duty to consult would obligate the Council to take reasonable measures to consult those nations, and the people therein, most affected by decisions falling under its Chapter VII authority regarding sanctions, intervention, and the use of force. After describing these duties, this Article draws upon qualitative data from within the U.N. itself to justify why this reform proposal, unlike many others, is viable. It also draws upon insights from the disciplines of legal process theory, social psychology, and negotiation to give explanatory power to why such reform matters will prove effective. Making these changes will enhance the UNSC’s decision processes in ways that will further its legitimacy and relevance in today’s world of multi-varied and evolving forms of conflict.

In seeking to more effectively wage the war on terror, the United States government has come close to declaring war on speech related to terrorism. The Government has taken steps to silence and punish foreign propagandists, foreign reporters, and even Americans who have produced “coordinated” speech with foreign terrorist organizations. While this latter attempt to chill speech raises serious constitutional concerns, the United States Supreme Court has seen little wrong with this approach. Indeed, the Court contorted existing First Amendment jurisprudence in Holder v. Humanitarian Law Project so as to uphold 18 U.S.C. § 2339B, an expansive material support statute encompassing “coordinated” speech.

These positions, no doubt taken with American safety in mind, not only damage our First Amendment jurisprudence, but also threaten to choke off the supply of open source intelligence, which derives from publicly available sources. This intelligence is especially vital in the modern war on terror taking place on the ground as well as on the Internet. This Article highlights the extraordinary deference shown by the Court in upholding a material support statute criminalizing non-violent speech and examines other governmental actions designed to chill foreign speech. This piece examines the deleterious effects chilling foreign speech will have on domestic security, detailing the importance of open source intelligence. Finally, this Article concludes by investigating the likely effect the Government’s positions will have on Crisis Mapping, an exciting new technology that leverages open source intelligence, social media, and horizontal information sharing, to empower citizens and coordinate humanitarian efforts.